3. Legal Regime
Transparency of the Regulatory System
The GoN possesses transparent policies and requisite laws to foster competition on a non-discriminatory basis, but does not enforce them equally, in large part due to corruption and weak governmental systems. Legal, regulatory, and accounting systems are generally transparent and consistent with international norms. The Legal Regime – related to the Investment Code, Labor Code and Commercial Acts – applies the provisions of the Organization for the Harmonization of Business Law in Africa (OHADA). It also offers free access to public procurement and with moderate transparency in the procedures for awarding contract.
Niger does not have any regulatory processes managed by nongovernmental organizations or private sector associations. A company in Niger must be entered in the Register of Companies, must obtain a Tax Identification Number (TIN), be registered with the National Social Security Fund (CNSS), and with the National Employment Promotion Agency (ANPE).
There, however, is a large informal sector that does not submit to any of the legal provisions and is not formally regulated.
In general, the National Assembly drafts regulatory guidance which is approved by the executive branch. For day-to-day operations each ministry or economic sector has separate regulatory agencies. For example, rule-making and regulatory authorities exist in telecommunication, public procurement and energy, all of which are relevant for foreign businesses, and are exercised at the national level. The law No 2015-58 established the Energy Sector Regulatory Agency, an independent administrative authority, to regulate the energy sector at the national level, but is effective only in major cities. The December 2012 law No 2012-70 created the Telecommunications and Post Office Regulatory Authority (ARTP). ARTP regulates all aspects of telecommunications operators. Legal, regulatory, and accounting systems are generally transparent and consistent with international norms. The Legal Regime – related to the Investment Code, Mining Code, Petroleum Code, Labor Code and Commercial Acts – applies the provisions of the Organization for the Harmonization of Business Law in Africa OHADA. It also offers free access to public procurement and transparency in the procedures for awarding contracts.
GoN officials have confirmed their intent to comply with international norms in its legal, regulatory, and accounting systems, but frequently fall short. Clear procedures are frequently not available.
Draft bills are not always available for public comment, although some organizations, such as the Chamber of Commerce, are invited to offer suggestions during the drafting process.
Niger does not have a centralized online location where key regulatory actions are published but does have a Directorate of National Archives where key regulatory actions are kept in print. The Directorate is under the Ministry Secretary of Government.
Foreign and national investors, however, can find detailed information on administrative procedures applicable to investment at the following site: http://niger.eregulations.org/ . The site includes information on income generating operations including the number of steps, name and contact details of the entities and persons in charge of procedures, required documents and conditions, costs, processing time, and legal basis justifying the procedures.
A General Inspectorate of Administrative Governance and the Regional Directorates of Archives are in place to oversee administrative processes. Their efforts are reinforced by incentives for state employees, unannounced inspections in public administrations, and an introduction of a sign-in system and exchange meetings. No major regulatory system and/or enforcement reforms were announced in 2019.
Regulations are developed via a system of ministerial collaborations and discussions, consultation with the State Council, drafting of the text and passed by the Council of Ministers. This is followed by discussions in Parliament, approval by the Constitutional Council and finally approved by the President for publication and distribution to interested stakeholders.
Based on the Constitution of 2011, regulatory power belongs to the President of the Republic and the Prime Minister who can issue regulations for the whole of the national territory. Other administrative authorities also have regulatory power, such as ministers, governors, or prefects and mayors, who have the power of enforcement at the local level.
Ministries or regulatory agencies do not conduct impact assessments of proposed regulations. However, ministries or regulatory agencies solicit comments on proposed regulations from the general public through public meetings and targeted outreach to stakeholders, such as business associations or other groups. Public comments are generally not published.
Public finances and debt obligations are not transparent enough; however, the International Monetary Fund and the European Union are funding projects to improve finances and debt transparency in which there is annual review and Niger was assessed to be making progress.
International Regulatory Considerations
Niger is a part of the Economic Community of West African States (ECOWAS), a 15-member West African trade block. National policy generally adheres to ECOWAS guidelines concerning business regulations.
Niger is part of the African Continental Free Trade Agreement, which came into affect in July 2019. Negotiations on Made in Africa and other aspects of the agreement were ongoing at the end of 2019.
Niger is a member of the U.N. Conference on Trade and Development’s international network of transparent investment procedures: http://niger.eregulations.org/ (French language only).
Niger is a member of the WTO, but as a lower income member, is exempt from Trade-Related Investment Measures (TRIMs) obligations. The GoN does not notify all draft technical regulations to the WTO Committee on Technical Barriers to Trade (TBT). Niger ratified a Trade Facilitation Agreement (TFA) in August 2015. The GoN has reported some progress on implementing the TFA requirements.
Legal System and Judicial Independence
Niger’s legal system is a legacy of the French colonial system. The legal infrastructure is insufficient, making it difficult to use the courts to enforce ownership of property or contracts. While Niger’s laws protect property and commercial rights, the administration of justice can be slow and unequal.
Niger has a written commercial law that is heavily based on the Organization for the Harmonization of Business Law in Africa (OHADA). Niger has been a member of OHADA since 1995. OHADA aims to harmonize business laws in 16 African countries by adopting common rules adapted to their economies, setting up appropriate judicial procedures, and encouraging arbitration for the settlement of contractual disputes. OHADA regulations on business and commercial law include definition and classification of legal persons engaged in trade, procedures for credit and recovery of debts, means of enforcement, bankruptcy, receivership, and arbitration. Niger established Commercial Court in Niamey in 2015. No statistics are available on the activities of the Commercial Court.
Article 116 of the constitution clearly states that the judicial system is independent of the executive and legislative branches. However, the personnel management process for assignments and promotions is through politically appointed personnel in the Ministry of Justice, seriously weakening the independence of the judiciary and raising questions about the fairness and reliability of the judicial process.
Regulations or enforcement actions are appealable and adjudicated in the court system. However, it is extremely rare for individuals or corporations to challenge government regulations or enforcement actions in court due to costs and administrative obstacles.
For example, in 2018, the government initiated tax cases against the telecommunication companies of Orange, Airtel, Moov and Nigertelecom (the state-owned entreprise). Moov, Nigertelecom and Airtel negotiated a settlement. Orange, a French owned multi-national corporation that provided cell phone and Internet service in Niger challenged the government order through the commerce tribunal and later in the constitutional court. To begin the process, Orange had to submit 75 percent of the claimed tax discrepancy. Orange claimed that the charge made it prohibitive for the company to access the courts. The Constitutional Court determined that if an appeal is successful the government must repay the funds, thus the 75 percent charge is not an obstacle.
Laws and Regulations on Foreign Direct Investment
Niger offers guarantees to foreign direct investors pertaining to security of capital and investment, compensation for expropriation, and equality of treatment. Foreign investors may be permitted to transfer income derived from invested capital and from liquidated investments, provided the original investment is made in convertible currencies.
Other than the decisions against Orange, previously described, there were no major laws/regulations or decisions in 2019. Judicial decisions that have come out in the past years can be found on the Commerce Tribunal of Niamey website: http://www.tribunalcommerceniamey.org/index.php .
Niger does not have a dedicated one-stop shop website for investment, but the Chamber of Commerce and Industry houses a specialized institution, known as the Investment Promotion Center (CPI) which supports domestic and foreign investors in terms of business “creation, extension, and rehabilitation.” The HCIN and ANPIPS (Agence Nigerienne pour la Promotion des Investissements et Projets Strategiques), which are within the Prime Minister Office, are fully authorized by the GoN to support possible foreign investors. These two structures may assist investors in using or adhering to Niger’s codes and regulations such as the investment code, the Public-Private-Partnership agreement, the electricity code, and the petroleum code.
Competition and Anti-Trust Laws
There were no new developments in 2019 related to competition concerns. Under the auspices of the Ministry of Trade, the GoN in 2015 validated a new Competition and Consumer Protection Law, replacing a 1992 law that was never fully operational. Niger also adheres to the Community Competition Law of the West African Economic and Monetary Union (WAEMU).
Expropriation and Compensation
The Investment Code guarantees that no business will be subject to nationalization or expropriation except when deemed “in the public interest” as prescribed by the law. The code requires that the government compensate any expropriated business with just and equitable payment. There have been a number of expropriations of commercial and personal property, most of which were not conducted in a manner consistent with Nigerien law requiring “just and prior compensation.” It is in fact rare for property owners to be compensated by the government after expropriations of property.
There is no record of expropriations of property of international investors.
With the planned construction of the Kandaji Dam beginning in 2019, and in adherence to requirements for donor funding, the government offered to resettle 38,000 individuals and their livestock to new sites. The government created an agency to conduct all resettlement related activities upstream and downstream of the dam construction. The agency conducted a census to determine who would be impacted and held public consultations to meet the populations and collect complaints at each step of the process. The process is ongoing, with some individuals expressing concern about the value of compensation and the ability to farm in their new location.
In cases of expropriation carried out by the GoN, claimants and community leaders have alleged a lack of due process. These complaints are currently limited to community forums and press coverage. Many of the families impacted, usually those whose land is expropriated for construction projects, lack the knowledge and ability to exercise their rights under the law. High rates of illiteracy, complexity of the legal system, and lack of resources to retain competent legal counsel present insurmountable barriers to legal remedies for most Nigerien business owners who have had their property expropriated, legal challenges to expropriation are not lodged.
ICSID Convention and New York Convention
Niger is a contracting state of both the ICSID Convention and the New York Convention of 1958. There is no domestic legislation providing for enforcement of awards under the 1958 New York Convention and/or under the ICSID Convention.
Investor-State Dispute Settlement
The Investment Code offers the possibility for foreign nationals to seek remedy through the International Center for the Settlement of Investment Disputes. Niger does not have a BIT or FTA with the United States that would provide dispute settlement processes. Over the past 10 years, there were no investment disputes that involved a U.S. person. Local courts are generally reluctant to recognize foreign arbitral awards issued against the GoN. Niger does not have a record of extrajudicial actions against foreign investors.
International Commercial Arbitration and Foreign Courts
Niger has an operational center for mediation and arbitration of business disputes. The center’s stated aim is to maintain investor confidence by eliminating long and expensive procedures traditionally involved in the resolution of business disputes.
The Investment Code provides for settlement of disputes by arbitration or by recourse to the World Bank’s International Center for Settlement of Disputes on Investment. However, investment dispute mechanisms in contracts are not always respected.
There was no publicly available information in 2019 on foreign arbitral award enforcement in Niger. Procedures are in place but are often not adhered to because of a lack of resources and corruption in the judicial system.
Niger has laws related to insolvency and/or bankruptcy. Creditors have the right to object to decisions accepting or rejecting a creditor’s claims and may vote on debtors’ bankruptcy reorganization plans. However, the creditors’ rights are limited: creditors do not have the right to receive from a reorganized firm as much as they may have received from one that had been liquidated. Likewise, the law does not require that creditors be consulted on matters pertaining to an insolvency framework following the declaration of bankruptcy. Bankruptcy is not criminalized.
According to data collected by the World Bank’s Doing Business survey, resolving insolvency takes five years on average and costs 18 percent of the debtor’s total assets. Globally, Niger stands at 114 in the 2020 ranking of 190 economies on the ease of resolving insolvency. Niger strength of insolvency framework index (0–16) is 9.
5. Protection of Property Rights
Interests in property are enforced when the landholder is known, but property disputes are common, particularly involving community-owned land or land in rural areas where customary land titles are still common. Even in urban centers, such as Niamey, offices responsible for overseeing construction permits are unable to identify ownership for large swaths of land. Mortgages are relatively new instruments; Bank Atlantique introduced the first mortgages in 2014. The bank retains the title to the property until the loan is repaid.
Foreign ownership of land is permitted but requires authorization from the Ministry of Planning. The 2018 Finance Law changed tax policies on foreign ownership, but was not yet in force at year’s end. It is unknown how much land does not have clear title and the government does not have a defined effort to register lands at the national level.
Traditional use rights are at the core of land disputes between Nigerien farmers and traditional nomadic herders. According to data collected by the World Bank’s 2020 Doing Business survey conducted in 2019, registering property in Niger requires four procedures, takes 13 days and costs 7.4 percent of the property value. Globally, Niger stands at 115 in the ranking of 190 economies on the ease of registering property. In 2014, Niger made transferring property easier by reducing registration fees.
Intellectual Property Rights
As a signatory to the 1983 Paris Convention for the Protection of Industrial Property, Niger provides national protection under Nigerien patent and trademark laws to foreign businesses. Niger is also a member of the World Intellectual Property Organization (WIPO) and a signatory to the Universal Copyright Convention.
No new intellectual property rights, laws or regulations have been enacted in the past year. Niger does not regularly track and report on seizures of counterfeit goods. There is no specific information about working conditions in the production or sale of counterfeit goods. While there have been some seizures, government statistics are not available.
Niger is not included in the United States Trade Representative (USTR) Special 301 Report or the Notorious Markets List.
8. Responsible Business Conduct
There is a general awareness of expectations regarding RBC, as well as business’ obligations to proactively conduct due diligence and do no harm.
Ordinance No. 97-001 of 10 January 1997 on the Institutionalization of Environmental Impact Assessments, Article 4 of which states: “Activities, projects or programs of development which, by the importance of their size or their impact on the natural and human environments, may affect the latter are subject to prior authorization from the Minister of the Environment. This authorization is granted on the basis of an assessment of the consequences of the project activities or the program updated by an environmental impact study prepared by the promoter.”
In the extractive industries sector, the GoN has focused on ensuring existing obligations are met and that communities benefit from investments. Nigerien law states that 15 percent of revenues derived from extractive industries must be returned to the municipality affected by the project. However, such payments are difficult to track and the GoN is not active or engaged in follow-up.
Niger rejoined the Extractive Industry Transparency Initiative (EITI) in March 2020 and has funded a domestic EITI office to guide domestic efforts to meet all requirements.
There have been no high-profile instances of private sector impact on human rights in the recent past. The GoN attempts to enforce domestic laws related to human rights, labor rights, consumer protection, and environmental protections. However, a lack of resources makes such enforcement difficult and only somewhat effective.
The government has not put in place corporate governance, accounting, and executive compensation standards. There is limited NGO focus on responsible business practices. Those looking at transparency in contracts and business practices are generally able to work freely regarding engagement with businesses.
Niger is not a member of the OECD and does not adhere to OECD guidelines, including those related to supply chains of minerals from conflict-affected and high-risk areas. There are no Nigerien-owned companies that deal exclusively with minerals, including those that may originate from conflict-affected areas.
The GoN was a member of EITI since 2007, but the country withdrew following the Board’s decision in October 2017 to suspend Niger on the basis of inadequate progress. In 2018, the government began a process to rejoin EITI and reformulated its EITI offices to meet the organization’s standards. Niger rejoined in March 2020. The constitution mandates full disclosure of all payments from foreign government stemming from mining operations, as well as publication of all new exploration and exploitation contracts in the mining sector. However, in practice, payments from foreign countries to GoN officials have at times been controversial due to non-reporting of such payments.